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ISCR Case 10-03669.h1 — CASE

ISCR Case 10-03669.h1denied

Case Headnote

ISCR Case No. 10-03669.h1

deniedApr 6, 2011· Hon. Robert E. Coacher· hearing

Summary

A 25-year-old defense contractor with an associate's degree in information technology was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant admitted to extensive drug use, including methamphetamine from 2004 through October 2009, cocaine from 2005 through August 2009, and ecstasy ten times from 2004 to 2005, which also involved purchasing and selling. He also used marijuana three times from 2003 through April 2007 and ketamine twice from 2004 to 2005.

A significant concern was the applicant's lack of candor on his November 23, 2009, security clearance application. While he admitted to past marijuana use, he intentionally omitted all other drug use, including methamphetamine, cocaine, ketamine, and ecstasy. This omission raised disqualifying conditions related to personal conduct and drug involvement.

The judge determined that the applicant's recent drug use and his failure to disclose it fully on his application demonstrated a lack of reliability and trustworthiness. The applicant did not provide sufficient evidence of rehabilitation to mitigate these concerns, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant admitted to extensive drug use, including methamphetamine, cocaine, and ecstasy, from 2004 to 2009.
Applicant intentionally omitted significant drug use from his security clearance application, demonstrating a lack of candor.
The applicant's recent drug use and failure to provide sufficient evidence of rehabilitation raised doubts about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

H.25(a)appliedDrug Abuse
H.25(c)appliedIllegal Drug Possession
E.16(a)appliedDeliberate Omission

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedSep 7, 2010
Answer filedSep 21, 2010
Hearing heldDec 1, 2010
Decision dateApr 6, 2011

Cite For

Failure to Mitigate Drug Involvement Under Guideline H
Lack of Candor in Security Clearance Applications Under Guideline E
Consideration of Recent Drug Use in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct concerns under Guideline E, specifically regarding the falsification of his security clearance application. The applicant admitted to intentionally failing to disclose his past drug use, which raised significant questions about his reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	In his November 23, 2009, security clearance application, he admitted past marijuana use, but failed to list any other past drug use (See SOR ¶ 2.a).	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement raised significant security concerns, leading to a denial of his security clearance. The applicant admitted to using multiple illegal substances, including methamphetamine, cocaine, marijuana, ketamine, and ecstasy, and failed to mitigate these concerns despite presenting some evidence of positive character references and a negative drug test.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Using methamphetamine from 2004 through October 2009	Against Applicant	Methamphetamine	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Using cocaine from 2005 through August 2009	Against Applicant	Cocaine	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	Using marijuana three times from 2003 through April 2007	Against Applicant	Marijuana	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.d	Using ketamine twice from 2004 to 2005	Against Applicant	Ketamine	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.e	Using, purchasing, and selling ecstasy 10 times from 2004 to 2005	Against Applicant	MDMARelated Misconduct	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.f–1.g	2 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 10-03669 ) Applicant for Security Clearance )

For Government: John Bayard Glendon, Esq., Department Counsel For Applicant: Pro se

April 6, 2011 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline H, Drug Involvement and Guideline E, Personal Conduct. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On September 7, 2010, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, Drug Involvement and Guideline E, Personal Conduct. DOHA acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the Department of Defense on September 1, 2006. Applicant answered the SOR on September 21, 2010, and requested a hearing before an administrative judge. The case was assigned to me on November 2, 2010. DOHA issued a notice of hearing on November 16, 2010, and the hearing was convened as scheduled on December 1, 2010. The Government offered exhibits (GE) 1 and 2, which were admitted into evidence without objection. Department Counsel’s exhibit index is marked as Hearing Exhibit (HE) I. Applicant testified, called three witnesses, and offered exhibits (AE) A through E that were admitted into evidence. DOHA received the hearing transcript (Tr.) on December 10, 2010.

FINDINGS OF FACT

In Applicant’s answer to the SOR, he admitted all the drug allegations under Guideline H, but denied the falsification allegation under Guideline E. After a thorough and careful review of the pleadings, testimony, and exhibits submitted, I make the following findings of fact.

Applicant is 25 years old. He is single, never been married, and has no children. He has an associate’s degree in information technology. Since November 2009, he has worked for a defense contractor. He has no military service and has not previously held a security clearance.1

Applicant’s admitted conduct raised in the SOR includes: using methamphetamine from 2004 through October 2009, using cocaine from 2005 through August 2009, using marijuana three times from 2003 through April 2007, using ketamine2 twice from 2004 to 2005, using, purchasing, and selling ecstasy 10 times from 2004 to 2005 (See SOR ¶¶ 1.a – 1.g). In his November 23, 2009, security clearance application, he admitted past marijuana use, but failed to list any other past drug use (See SOR ¶ 2.a).

Applicant first began using marijuana when he was about 17 years old. He used marijuana three times between 2003 and 2007, twice with friends and once with his brother. He was given the marijuana each time. He felt the effects of being high on marijuana by laughing and feeling relaxed. Between 2004 and 2005, he used ketamine, also known as “K”, on two occasions. The first time he used it was with some friends at a hotel room. He used it by putting the powdered substance on a table in lines and snorting it up his nose. The second use was at a friend’s house. This time the ketamine had to be converted from liquid form into powder. This was done by baking it in an oven. He then snorted the powder up his nose.3 Applicant began using methamphetamine during the summer of 2004. He used it over 40 times, with the last use in October 2009. He initially snorted it with friends, and then later began smoking it. He also began using ecstasy during the summer of 2004. He used this drug by ingesting pills on about 10 occasions through 2005. On at least one occasion, he bought ecstasy pills for $13 each and sold them to his friends for the same price. He did not profit from the transactions.4

Applicant’s cocaine use began in the summer of 2005. He used cocaine at a friend’s house by snorting four or five lines of the powdered cocaine. He used cocaine in the same manner about twice a month until the summer of 2006. He also used cocaine about five times in 2007, one time in 2008, and one time in August 2009, which was his last use of cocaine.5

Applicant did not list his methamphetamine, ketamine, ecstasy, or cocaine use in section 23 of his security clearance application. During a subsequent interview with an investigator, he admitted to intentionally withholding this drug information. He told the investigator that he was ashamed of using those drugs and was concerned whether such admissions would affect his chances of getting a security clearance. He testified that he told the investigator about his more extensive drug use before he was asked about it. However, there was no notation in the investigative report about his unsolicited new drug admissions.6

Applicant’s co-workers and sister testified that he is reliable and trustworthy. He presented a statement from a former manager that described himt as “reliable, trustworthy, and loyal.” He presented his quality assurance evaluations from work. He also presented a drug test result from a sample taken on November 2, 2010, showing a negative result. Applicant testified that he does not intend to use any drugs in the future, or while holding a security clearance and presented a signed written statement to that effect.7

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion to obtain a favorable security decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline H, Drug Involvement

AG ¶ 24 expresses the security concern pertaining to Drug Involvement:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. I have considered all of the evidence in this case and the disqualifying conditions under Drug Involvement AG ¶ 25 and especially considered the following:

(a) any drug abuse; and

(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

Appellant used methamphetamine, ecstasy, cocaine, ketamine, and marijuana on a number of occasions. He also bought and sold ecstasy. I find both the above disqualifying conditions apply.

I have considered all of the evidence in this case and the mitigating conditions under Drug Involvement AG ¶ 26 and especially considered the following:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and

(b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant’s use of drugs was frequent and recent (last use October 2009). The period of abstinence is insufficient to demonstrate Applicant’s intent not to use in the future. Additionally, even though he signed a letter of intent not to use drugs in the future, not enough time has passed to know whether Applicant’s stated intent are just words rather than demonstrated actions. AG ¶ 26(a) does not apply, and AG ¶ 26(b) partially applies.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern for personal conduct:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying condition is potentially applicable: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

Applicant admitted falsifying his security clearance application by intentionally failing to list all of his drug use. AG ¶16(a) applies.

The guideline also includes examples of conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and especially considered the following:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; and

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment.

I am not persuaded by Applicant’s testimony that he made a prompt, good-faith disclosure to the investigator before being confronted with his prior false answers. There is no indication from the documentary evidence that such an unsolicited disclosure took place. Additionally, supplying intentionally false information during the security clearance process is not a minor offense and it casts doubt on his overall reliability, trustworthiness, and good judgment. AG ¶¶ 17(a) and (c) do not apply.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I considered the witnesses’ character testimony about Applicant’s loyalty, trustworthiness and reliability. I considered his work-related quality assurance evaluations and the statement from his former manager. I also considered Applicant’s statement of intent not to use drugs in the future and his November 2, 2010 negative drug test. However, I also weighed that he used cocaine, methamphetamine, ketamine, ecstasy, and marijuana on numerous occasions, and as recently as October 2009. I further considered that he lied about the full extent of his drug use on his security clearance application. Applicant failed to provide sufficient evidence to mitigate the security concerns.

Overall the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline H, Drug Involvement, and Guideline E, Personal Conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: AGAINST APPLICANT

Subparagraphs 1.a-1.g: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 Tr. at 5, 48-49, 55; GE 1. 2 Ketamine is a schedule III controlled substance under the Controlled Substance Act (21 U.S.C. 811 et seq.). 3 Tr. at 50-51; GE 2. 4 Tr. at 51, 56; GE 2. 5 Tr. at 54; GE 2. 6 Tr. at 56-58, 74-75; GE 2. 7 Tr. at 29-47; AE A, B, D, E